The Supreme Court overturned the Alberta Court of Appeal ruling in R. v. Vassell, 2016 SCC 26, setting aside a cocaine trafficking conviction and entering a stay of proceedings because the accused’s right to be tried within a reasonable time under s. 11(b) of the Charter was infringed. The Crown chose to prosecute seven co-accused jointly, and the six co-accused caused much of the delay. The accused, on the other hand, “took proactive steps throughout…to have his case tried as soon as possible,” but ultimately waited three years for a three day trial alone. Two final adjournments, occasioned by the Crown, pushed the delay beyond the bounds of reasonableness, said the court, which found that the Crown should have taken a more proactive stance in fulfilling its obligation to bring all accused to trial within a reasonable time.” This Legal Feeds blog post discusses the decision.

A penile swab taken without a warrant but incident to arrest did not violate the accused’s s.8 right to be secure against unreasonable search and seizure, according to a divided Supreme Court in R. v. Saeed, 2016 SCC 24. While a penile swab constitutes a significant intrusion on the privacy interests of an accused, it “implicates different privacy interests and law enforcement objectives than seizures of an accused’s bodily samples and certain impressions.” (para. 51) According to the majority, “the police may take a swab incident to arrest if they have reasonable grounds to believe that the search will reveal and preserve evidence of the offence for which the accused was arrested, and the swab is conducted in a reasonable manner.” (para. 6) In this case both requirements were met and the evidence of the complainant’s DNA found on the swab was therefore properly admitted at trial. The court outlines the factors to guide police in conducting penile swabs incident to arrest reasonably at para. 78. This Legal Feeds blog post provides more details on the case.

“Penetration remains, as it has always been, an essential element of the offence of bestiality,” according to the Supreme Court in R. v. D.L.W., 2016 SCC 22. The court declined to “create a new crime” by conceding that engaging in any activity with an animal constitutes bestiality, but noted that “it does not follow that all sexually exploitative acts with animals that do not involve penetration are ‘perfectly legal,’” as argued in the dissenting judgment. According to the author of this ABlawg post, the case “highlights the inherent problems in discerning or interpreting value-laden legislation as it then was and then, ultimately, as it needs to be.”

An eight and a half year sentence for a series of charges related to six armed robberies by a gang member was not proportional to sentences for similar offences in similar circumstances and was therefore not fit, according to the Court of Appeal in R v Harper (J), 2016 MBCA 64. Offences involving firearms, mandatory minimums, and gang involvement should not be treated the same as those that do not, said the court, which substituted an eleven year concurrent sentence. The court viewed the accused’s gang involvement and his having committed the robberies with and for the gang as being seriously aggravating circumstances requiring “that the resulting sentence express society’s denunciation of such conduct and attempt to deter others.” (para. 59)

The appeal court reduced a six-year sentence for manslaughter to four years in R v Friesen, 2016 MBCA 50, finding that the sentencing judge imposed a higher sentence than was fit in the circumstances, given the impact of the young accused’s partial FASD diagnosis and his potential for rehabilitation. The court outlines the considerations that must be taken into account by a sentencing judge where FASD is relevant, and reviews the growing jurisprudence on this issue, concluding at para. 26 that: … an offender’s moral blameworthiness may be reduced if he suffers from an FASD related diagnosis and there is a connection between the condition and the offence for which he stands charged. The sentencing judge must have evidence of the diagnosis and its impact on the accused in order to draw the nexus between that diagnosis and the accused’s conduct relating to the offences. In this case, where the accused’s conduct and the nature of the attack clearly suggested impulsivity, lack of control and a failure to recognize the consequences of his actions, the judge erred in not considering diminished moral culpability. In addition, “rehabilitation should be a factor in the determination of a fit and proper sentence unless it is clearly irrelevant,” and “to give up on the accused and park him in a penitentiary for an additional period of time on the basis of his pFAS diagnosis” would be inappropriate. (para. 39)

The court ordered a new trial on a charge of manslaughter in R v Mustard (G), 2016 MBCA 40, finding that the trial judge had erred in going beyond a limited weighing of the evidence in deciding not to put the accused’s self-defence theory to the jury. The court notes that in applying the air of reality test the judge has no ability to weigh direct evidence and may only engage in a limited weighing of circumstantial evidence focussing on whether the evidence viewed as a whole is reasonably capable of supporting a “credible narrative of events” that could allow a properly instructed jury to acquit based on the defence. “A trial judge cannot assess the quality, credibility or reliability of evidence, substantively weigh the probative value of evidence, make findings of fact or draw determinative inferences.” (para. 21) In this case, where there was a fine line as to whether the air of reality threshold had been met, the judge erred by substantively weighing the evidence, making findings of fact as to the circumstances of the fight, and drawing inferences that should have been reserved for the jury.

In R. v. Baldovi et al, 2016 MBQB 90, the court dismissed the joint motions of all accused in the “Project Sideshow” investigation for “disclosure” of information from the court (third party production) and recusal by the Chief Justice (in his role as case management judge respecting the motion to quash the wiretap authorization). A third (extremely rare) motion for the disqualification and prohibition of all judges of the Court of Queen’s Bench was quietly abandoned as having no merit after receiving considerable attention in the media, prompting these comments from the court: Given the acknowledgement by the accused that their argument “had no merit” and given the abrupt and casual manner in which such a motion was abandoned, questions can be legitimately asked about the ethical appropriateness of bringing such a motion in the first place. However indirectly framed in the language of apprehended bias, the motion has nonetheless the effect of calling into question the impartiality (or the capacity to be impartial) of members of an entire court. Questions can be asked about whether a motion as categorically and provocatively pled as one which seeks the disqualification and prohibition of an entire court was properly researched, where in the end it was determined by counsel themselves to possess no merit. Questions might also be asked as to whether counsel – prior to making an allegation which impugns the perceived impartiality of all the members of a court – bear some special and particular responsibility to ensure that such arguments are grounded in fact and law. (para. 59)

R v TJD, 2016 MBCA 67 – errors by the sentencing judge allowed the Court of Appeal to reconsider the illegal sentence imposed on a young offender for two counts of motor vehicle theft and failure to comply with a youth sentence. Although mindful of the threat to the long-term protection of the public posed by the accused (an inveterate car thief with a long, related youth record), the appeal court found that the best sentencing option under the YCJA was a lengthy period of secure custody followed by strict terms of probation. R v Giesbrecht, 2016 MBCA 34 – the Court of Appeal overturned a 9 month sentence imposed on a funeral home director who pleaded guilty to 21 fraud charges as part of a plea bargain in which counsel jointly recommended a jail sentence of two years less a day to be served conditionally in the community, followed by three years of supervised probation. The court found that the sentencing judge erred in finding that the JSR (negotiated by experienced and competent counsel) was not the product of a true plea bargain, lacked quid pro quo, and proposed an inappropriate sentence. “It is well established that if the proposed sentence reflected in a true plea bargain falls within the range of sentence established by precedent, it should not be rejected by a sentencing judge unless there are cogent reasons for doing so,” said the court, which substituted a conditional sentence of 2 years less a day. R. v. Ostamas, 2016 MBQB 136 - the accused, who murdered three homeless and vulnerable victims, was sentenced to life imprisonment in respect of each of three murder convictions and, on the joint recommendation of counsel, his parole ineligibility was increased to a total of 75 years. R. v. Ackman, 2016 MBQB 109 – the 47-year-old self-represented accused, who ran an escort agency using underage and vulnerable girls, received a 15 year sentence for multiple sexual assault convictions. R. v. Thorsteinson, 2016 MBQB 100 – the court declined to follow a “misplaced” joint sentencing recommendation for breach of the alcohol abstention and curfew provisions of a CSO. The court found that the presumption against termination of the CSO had not been rebutted by all of the terms of the recommendation or quid pro quo bargain (the accused agreed to plead guilty to impaired driving plus serve an additional six months for breaching the CSO). The breaches “vividly undercut the threshold requirement of any CSO that service of a sentence in the community would not endanger the safety of the community,” said the court, and “not to terminate it would make a sham of the CSO, neutering its purpose and potency.” In addition, denunciation and deterrence were critical factors in the egregious breach. (para. 19) R. v. P. (K.W.), 2016 MBQB 99 – the 66-year-old first offender was sentenced to 30 months’ incarceration for sexually assaulting his 4-year-old granddaughter over a six month period.

Victims Bill of Rights Act, S.C. 2015, c.13 - several sections of this Act (s.46(1), s. 26(1)(d) of the Corrections and Conditional Release Act as enacted by s. 46(3), and ss. 48(3) and 49(1) and (3)) came into force on June 1, 2016, by Order in Council P.C. 2016-366. Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), received royal assent June 17, 2016. Among other things, it amends the Criminal Code to create exemptions from certain offences to permit medical practitioners to provide assistance in dying; specifies and establishes the eligibility criteria for assistance; and establishes offences for failing to comply with or contravening the regulations.

The Retention of Women in the Private Practice of Criminal Law: Research Report – the Criminal Lawyers’ Association recently released their report on the challenges faced by women in criminal defence work. The report’s findings suggest that women face gender based challenges and are leaving private practice at a higher rate than men, but suggestions are made to improve retention rates. This Lawyers Weekly article discusses the report. Digital Video and the Courts — More than Meets the Eye – this Practice Points paper outlines the issues for criminal law practitioners to consider when navigating through visual evidence intended for court. Access to Justice in Criminal Law – a recent Ontario decision in which the judge stayed serious drug charges until the accused is given state-funded counsel, was the catalyst for this Slaw article discussing how inadequate legal aid funding undermines the rule of law. The author proposes several radical changes to improve access to justice, but concludes that none are a silver bullet. No Votes in Justice — Plea Bargaining and Wrongful Convictions – also on the theme of underfunding justice, this Slaw post references a published article arguing that the poor state of resources given the criminal justice system increases the probability of wrongful convictions. Making a Canadian Murderer – this Slaw post compares the criminal justice systems in Canada and the United States and shows how the distinctions make it less likely that a Canadian accused will face an Avery style wrongful conviction. Can evidence of a polygraph test be used in court? - this BC Provincial Court post discusses the limitations of polygraph tests and why they are rarely used as evidence in Canadian courts. Smoky Ethical Waters Around Marijuana Dispensaries – the author of this Slaw post argues that resources used to police marijuana dispensaries could be better spent given proposed changes to the law. Appeal court ruling clarifies law around self defence – this Legal Feeds blog post discusses R. v. Cunha, 2016 ONCA 49, a recent Ontario Court of Appeal decision clarifying the law concerning self-defence and the need for the court to “be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.”

Criminal Defence Advocacy Skills Workshop – the Law Society of Manitoba and the Criminal Defence Lawyers’ Association are jointly presenting a full day workshop on examinations-in-chief and closing statements on October 1, 2016. This is a limited enrollment program requiring advance preparation, so register early to confirm your spot. Special pricing is available for recent calls.

The CPD Replay schedule is now posted on the LSM website. If you missed attending one of these popular programs the first time around, replays are a cost effective way to catch up on your CPD hours during the slower paced summer months. Find a program and date that works for you, with a wide variety of programming topics offered from July 18 to August 10, 2016. Don't see a time that fits your schedule? These DVDs are available for purchase and can be viewed at your own convenience.